¶1This suit was commenced by appellee, D.C. Burleson, as plaintiff, against J.B. Ratliff, E.P. Haigler, and T.N. Franks, as defendants, in the District Court of Hays County, Texas, on the 26th day of August, A.D. 1889, to try the title to fifty-two and two-fifths acres of land situated in Hays County, Texas.
¶2On the 6th day of September, A.D. 1889, an interlocutory judgment by default was rendered against the defendant T.N. Franks.
¶3On the 7th day of March, A.D. 1890, the defendants J.B. Ratliff and E.P. Haigler filed their original answer, consisting of a general demurrer, plea of not guilty, and a general denial.
¶4The case was tried on the 25th day of March, A.D. 1892, before the court without a jury. Judgment was rendered in favor of the plaintiff, D.C. Burleson, against the defendants, J.B. Ratliff, E.P. Haigler, and T.N. Franks, for the recovery of the title to and possession of the land in controversy, and the defendants J.B. Ratliff and E.P. Haigler appealed.
¶5Opinion. — The court below filed its conclusions of fact and law, as follows, which we adopt as the facts found by this court, and also agree with the trial court in its conclusions of law:
¶6Facts. — "1. By agreement of the parties the sole issue in this cause is, whether the strip of land sued for by the plaintiff, Burleson, was part of the public domain, between the William Porter and George Herder surveys, or was embraced within the bounds of said surveys, at the time when the same was located by Burleson as vacant land.
¶7"2. The Porter is the older one of the two surveys, and the field notes of the subsequent Herder survey do not call for the west line of the Porter survey.
¶8"3. The true location of the southwest corner of the Porter survey and the southeast corner of the Herder survey determines whether *623 the two surveys are contiguous, or are separated by the strip of land in controversy.
¶9"4. Being an open prairie country, neither natural nor artificial objects are called for in the field notes.
¶10"5. Running the south line of the Porter survey from its known and established southeast corner west 2750 varas, and the south line of the Herder survey from its known and established southwest corner east 3226 varas, leaves the distance of 108 varas between the two surveys in question.
¶11"6. One witness who made or assisted in the original survey of the Porter survey, and also the Herder survey, testifies, that it was the intention to run the south line of the Herder survey to a point in the west line of what is designated on the maps as the E. Burleson survey, and to make the east line of the Herder survey and the west line of the Porter survey contiguous or identical. He thinks that the lines of the Herder survey were actually run so as to carry out this intention, but by reason of the absence of any definite object he can not be positive that this was actually done, but his judgment is that it was done.
¶12"7. The field notes of the Herder survey in the patent do not call for any point in the west line of any adjacent survey as contiguous.
¶13"8. If course and distances are followed, there remains a distance of 108 varas between the Porter and Herder surveys, and still each of these two surveys contain the stated quantity of land."
¶14Conclusions. — "1. In the absence of any artificial or natural objects called for in the two surveys, course and distance control their lines.
¶15"2. Even if the surveyor who made the original survey of the Herder survey had in fact run 108 varas beyond the point in the south line of the Herder survey (3226 varas) in order to reach the west line of adjacent surveys, in the absence of any call for objects susceptible of identification, or for any point in the west line of any of the adjacent surveys, the course and distance in the Herder field notes control the length of the south line of the Herder survey.
¶16"3. Evidence tending to show long recognition of certain lines by owners of land on said surveys is ignored, because such recognition, or even agreements between owners of adjacent lands, such as would estop them from asserting rights adverse to such agreement, can not in any way affect public domain, or appropriate any portion of it.
¶17"4. The land described in plaintiff's petition was public domain, and the plaintiff is entitled to the same by reason of his location."
¶18The judgment is affirmed.